Can my Tennessee homeowners' association ban political canvassing in our neighborhood without violating the First Amendment?

Subject

Homeowners' Association Restrictions on Political Canvassing

Plain-English summary

A representative asked the AG whether homeowners' associations in Tennessee can prohibit political canvassing in their neighborhoods without running afoul of the First Amendment. The AG concluded they can.

The reasoning rests on the state-action doctrine. The First Amendment, applied to the states through the Fourteenth, restricts only government action. Political canvassing is plainly protected speech when government tries to regulate it (cases like Watchtower Bible & Tract Society and Ohio Citizen Action have struck down city ordinances that banned door-to-door canvassing). But a homeowners' association is a private entity, not a state actor, so its restrictions do not implicate the First Amendment at all. An HOA can ban canvassing in its community without any constitutional scrutiny.

Tennessee's separate statutory framework adds one carve-out. Under Tenn. Code Ann. § 2-7-143(b)(2), part of the Tennessee Freedom of Speech Act, an HOA cannot prohibit a homeowner from displaying political or campaign signs or posters on private property within the community, although the HOA may impose reasonable rules about size and placement. The Act does not address door-to-door canvassing, and no other Tennessee statute restricts an HOA's ability to ban that activity. So the picture is: yard signs are protected by statute, canvassing is not.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the First Amendment not protect canvassers in an HOA?

Because the First Amendment only restricts government. The opinion quoted Blum v. Yaretsky and Shelley v. Kraemer for the principle that constitutional speech protections do not reach "merely private conduct, however discriminatory or wrongful." A private HOA passing rules about its private streets and common areas is not government action. There are exceptions for private entities so closely entangled with the state that they "may fairly be treated as that of the State itself" (Brentwood Academy, Jackson v. Metropolitan Edison), but ordinary residential HOAs do not meet that high bar.

Could a city ban canvassing the same way an HOA can?

No. The cases cited in the opinion (Watchtower, Ohio Citizen Action) struck down city ordinances banning canvassing without a permit or after specific hours. The legal status of the entity matters: a city is a government, an HOA is private.

Can an HOA prohibit yard signs for candidates?

Not under Tennessee law as it stood when this opinion issued. Section 2-7-143(b)(2) provides that an HOA "shall not, by covenant, condition, restriction, or rule, prohibit the display of political or campaign posters or signs placed on private property by the owner of the property or any lawful resident." The HOA can impose reasonable rules about placement and size, but a flat ban on political signs is barred.

What about other forms of political activity, like leafleting or door tags?

The opinion treats "canvassing" generally and does not parse fine distinctions between knocking on doors versus leaving leaflets. The state-action analysis applies the same way: a private HOA can restrict either, while a government cannot do so as freely. As a practical matter, an HOA's enforcement may depend on the language of its declaration of covenants and rules; canvassers and HOAs alike should look at the specific community rules and the contractual basis for them.

Background and statutory framework

The state-action doctrine is one of the foundational doctrines of constitutional law: the Bill of Rights restricts government, not private parties. Tennessee follows the standard federal analysis, looking for either (a) a sufficiently close nexus between the state and the challenged action, or (b) entwinement that justifies treating private conduct as state action. Routine HOA governance over its own property does not meet either test.

The Tennessee Freedom of Speech Act sits separately. It is a state statute that imposes specific protections for political speech inside residential communities, but it is narrow: as the AG noted, the Act prohibits HOA bans on political signs, and that is its main contribution to this area. It does not extend to door-to-door canvassing or other forms of in-person solicitation. So the practical line at the time of the opinion was: yard signs yes, in-person canvassing the HOA's call.

Citations

• Tenn. Code Ann. § 2-7-143(b)(2) (Tennessee Freedom of Speech Act)
• U.S. Const. amend. I, XIV § 1
• Watchtower Bible & Tract Soc'y v. Village of Stratton, 536 U.S. 150 (2002)
• Ohio Citizen Action v. City of Englewood, 671 F.3d 564 (6th Cir. 2012)
• Blum v. Yaretsky, 457 U.S. 991 (1982)
• Shelley v. Kraemer, 334 U.S. 1 (1948)
• Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001)
• Jackson v. Metro. Edison Co., 419 U.S. 345 (1974)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-13.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 5, 2019

Opinion No. 19-13

Homeowners' Association Restrictions on Political Canvassing

Question
May homeowners' associations prohibit political canvassing in their community consistent with the First Amendment?

Opinion
Yes. Political canvassing is an expressive activity protected by the First Amendment, but the First Amendment prohibits only state action that abridges speech or expression. Homeowners' associations are private entities, not state actors, and are not subject to the First Amendment. Thus, private homeowners' associations may prohibit or otherwise restrict political canvassing without implicating the First Amendment.

ANALYSIS

Political canvassing is an expressive activity that is protected by the First Amendment. See Watchtower Bible & Tract Soc'y v. Village of Stratton, 536 U.S. 150, 167-69 (2002) (holding unconstitutional under the First Amendment a municipal ordinance that prohibited canvassing for any "cause" without a permit); Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 570-80 (6th Cir. 2012) (holding unconstitutional under the First Amendment a city's ban on canvassing after six p.m.). Governmental restrictions on political canvassing are therefore subject to constitutional scrutiny and, if content-neutral, must be narrowly tailored to serve a significant government interest. See Ohio Citizen Action, 671 F.3d at 571.

The First Amendment does not prevent private restrictions on speech, however. The First Amendment applies to the States through the Fourteenth Amendment, which provides, in part, that "[n]o state shall . . . deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). The First and Fourteenth Amendments thus "erect[] no shield against merely private conduct, however discriminatory or wrongful." Id. (quoting Shelley, 334 U.S. at 13).

Accordingly, homeowners' associations, like other private entities, are not covered, or restricted, by the First Amendment. They may enact their preferred policies about political canvassing or solicitation without constitutional scrutiny. Such restrictions would only implicate the First Amendment if there were "such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may fairly be treated as that of the State itself.'" Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).

Even if the First Amendment does not apply, homeowners' associations remain subject to state and local laws. In the Tennessee Freedom of Speech Act, the legislature prohibited homeowners' associations from restricting the display of campaign signs and posters, although a homeowners' association may adopt reasonable rules about the placement and size of such signs. See Tenn. Code Ann. § 2-7-143(b)(2) ("A homeowners' association shall not, by covenant, condition, restriction, or rule, prohibit the display of political or campaign posters or signs placed on private property by the owner of the property or any lawful resident of a residence on the property.").

The Tennessee Freedom of Speech Act does not, however, place any restrictions on homeowners' associations with respect to political canvassing. Nor do other statutes limit the authority of homeowners' associations to prohibit or otherwise restrict political canvassing.

In sum, private homeowners' associations may prohibit or otherwise restrict political canvassing without implicating the First Amendment or the Tennessee Freedom of Speech Act.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Rick Staples
425 5th Avenue North
Suite 512, Cordell Hull Bldg.
Nashville, TN 37243